K AVINASILINGAM Vs. HAMSA

JUDGEMENT

(1.) THE tenant is the petitioner. In R.C.O.P. No. 686 of 1984 filed under S. 10 (2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to ?the Act?) the respondents prayed for the passing of an order of eviction against the petitioner on the ground that having obtained an order for deposit of rents in H.R.C. No. 569 of 1981 under S. 8(5) of the Act, the tenant wilfully defaulted in the payment of monthly rent at the rate of Rs. 350 for the months of April, May, July, September and October, 1983. In the counter filed by the petitioner, a plea was raised that as a result of the obtaining of orders under S. 8(5)of the Act in H.R.C. No. 569 of 1981 the respondents could not initiate proceedings for eviction against the petitioner under S. 10(2)(i) of the Act and that there was also no wilful default in the payment of rents for the months in question.

(2.) THE learned Rent Controller found that though the application under S. 10 (2)(i) of the Act for eviction at the instance of the respondents was maintainable despite the earlier orders under S. 8(5) of the Act, the petitioner had not committed wilful default in the payment of rents for the period in question and in that view, dismissed the application for eviction. On appeal, however, by the respondents for before the Appellate Authority, it was found that the petitioner had deliberately omitted to deposit the rents into court after obtaining a deposit order and the failure to pay the rents had also not been in any manner satisfactorily explained and therefore, the petitioner had committed wilful default in the payment of rents at least for the months of April and September, 1983 and that deserved the eviction of the petitioner from the premises in his occupation. It is the correctness of this order that is questioned in this Civil Revision Petition.

(3.) EARLIER, it has been noticed how from the documents filed it had been clearly made out that even after the obtaining of an order under S. 8(5) of the Act on 27-9-1982 in H.R.C. No. 569 of 1981, the petitioner had not deposited the rents for the months of April, September and October, 1983 or at any rate, for April and September, 1983. It has to be remembered that it was the petitioner who had invoked the jurisdiction of the Rent Controller under S. 8(5) of the Act and invited an order with a view to avert any possible proceedings for eviction on the ground of wilful default being initiated against him by the landlords. In such a situation, the failure of the petitioner to deposit the rents into court for the months referred to above cannot but be characterised to be deliberate and wilful. Having invited an order permitting the deposit of monthly rents into court under S. 8(5) of the Act, the petitioner cannot be heard to say that he need not comply with it or even if he had failed to comply with it, eviction proceedings could not be initiated against him under S. 10(2)(i) of the Act. The object behind Ss. 10(2)(i), 8(5) and 9(2) of the Act has already been noticed and when the tenant commits default in depositing the rents pursuant to an order under S. 8(5) of the Act, as a consequenee thereof, the rents are not paid and made available to the landlord under S. 9(2) of the Act and that in turn, would render the tenant liable to be evicted under S. 10(2)(i) of the Act. In this case, the petitioner, who was fully aware of his obligation to deposit the monthly rents under S. 8(5) of the Act pursuant to the order obtained in H.R.C. No. 569 of 1981, had admittedly not deposited the rents for the months of April, September and October, 1983 or atleast for April and September, 1983, even on the materials placed by the petitioner before the authorities and referred to earlier. Indeed, it is seen from the statement filed by the petitioner Ex. R-3 that the rent for April, 1983 had been deposited into Court on 24-7-1984 and the rent for September, 1983 had been so deposited on 10-8-1984. There is hardly any convincing explanation for the delayed deposit of the rents into court by the petitioner. Further, it is seen that the application for eviction was filed by the two respondents on 20-2-1984 and it was posted on 24-3-1984 for the first hearing and the petitioner had again appeared before the Rent Controller on 4-7-1984 and even then, the petitioner should have realised that the rents for the months of April and September, 1983 had not been deposited and the failure to deposit the rents cannot, therefore, admit of any excuse. No doubt, in paragraph 3 of the counter, the petitioner had stated that he had entertained an impression that the clerk would have made the deposits and that only on seeing the dates mentioned in the application for eviction, it was realised that there were delayed deposits and on enquiry it was learnt that the clerk fell sick often and there was thus a delay in the deposits. The petitioner has not placed any acceptable evidence in order to establish that either the clerk fell sick or on account of his sickness there was delay in the matter of deposit of the rents. Nothing prevented the petitioner from examining the clerk who isstated to be responsible for the delay in the deposit of rents. In its absence, the delayed deposits cannot be attributed to the sickness of the clerk as claimed by the petitioner. Yet another agreement faintly attempted wa that in a case where an order under S. 8(5) of the Act had been passed, it is open to the tenant to deposit the amounts whenever he choose and such deposits need not be regular. This argument certainly cannot be countenanced when the impact of Ss. 8(5) and 9(2) on S. 10(2)(i) of the Act is borne in mind. The deposit contemplated under S. 8(5) of the Act pursuant to the order passed by the Rent Controller should also be regular and in time, so that no occasion for the landlord initiating an action for eviction on the ground of wilful default, arises. When such deposits of rent are made regularly and in due time, under S. 9(2) of the Act, such deposits are paid out to the landlord so that the landlord is also enabled to receive the rent regularly and without fail and the tenant also discharges his obligation to pay the rent and the tenant continues to enjoy the protection from removability from the premises in his occupation on the ground of wilful default. The very purpose behind S. 8(5) and 9(2) of the Act will be completely lost, if it is to be held that the deposit of rents could be made by the tenant as and when he chooses. Under these circumstances, where an order has been passed under S. 8(5) of the Act, it is but proper that the deposits should be made at least within the limit permitted for the payment of rents. The reliance placed by learned counsel for the petitioner upon the stray observation at page 166 in the decision reported in Durgai Ammal v. R.T. Mani 1 , does not in any manner assist the case of the petitioner. In that case, from the facts as set out therein, no order under S. 8(5) of the Act had been passed at the instance of the tenant. Considering the refusal by the landlord of the rents sent by the tenant and the argument that S. 8 of the Act should have been resorted to by the tenant in order to save himself from the consequences of the commission of wilful default, it was observed that the failure of tenant to resort to S. 8 of the Act to deposit the rents will not amount to wilful default on his part in payment of rents. That observation has no relevance whatever in a case like this, where an order under S. 8(5) of the Act had been obtained by the tenant and the rents had not been deposited in accordance with that order. The decision in Manmohan Kaur v. Surya Kant Bhagwani 2 , which arose under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 4 of 1983, may now be considered. In considering the question of delay in deposit of rents pursuant to an order passed under S. 15 of that Act leading to the striking out of the defence, the Supreme Court pointed out that if the delay is explained, then there is no delay and the defence cannot be struck off, while, if the delay is not explained or the explanation is one which is not acceptable to the court, then the court, must strike out the defence and there is no discretion. On a consideration of the facts and circumstances of this case, it is clearly seen that the delay has not been satisfactorily explained and the appellate authority was, therefore, right in its conclusion that the petitioner had committed wilful default and thus rendered himself liable to be evicted. The civil revision petition is therefore dismissed with costs.